(영문) 부산지방법원 2020.12.23. 선고 2020가합44189 판결

1. The defendant shall pay to the plaintiff 10 million won with 6% interest per annum from October 13, 2020 to December 23, 2020, and 12% interest per annum from the next day to the day of complete payment.

2. The plaintiff's remaining claims are dismissed.

3. Of the litigation costs, 85% is borne by the Plaintiff, and 15% is borne by the Defendant, respectively.

4. Paragraph 1 can be provisionally executed.

Purport of claim

The defendant shall pay to the plaintiff 65,00,000 won with 12% interest per annum from the day following the day of service to the day of complete payment.

Reasons

1. Basic facts

A. On March 9, 2019, the Defendant entered into a contract with the Plaintiff on the same attached Table 1 (hereinafter referred to as “the primary contract of this case”) as to the coffee specialty of this case while operating the D store located in Busan Jin-gu Busan (hereinafter referred to as “the instant coffee specialty”).

B. On April 18, 2019, the Plaintiff decided to substitute the instant first contract with the Defendant under the same contract as attached Table 2 (hereinafter “instant second contract”). On the following day, the Plaintiff entered into a lease agreement with Nonparty E, the owner of the building located in the instant coffee specialty (hereinafter “instant lease agreement”). At the time of the instant first contract, the Plaintiff paid the Defendant KRW 10,000,000 as the down payment. After the conclusion of the instant second contract, the Plaintiff paid KRW 30,000,000 on May 10, 2019, and paid KRW 60,000,000 on May 13, 2019, and paid KRW 100,000,000 as stipulated in the instant second contract, and paid KRW 10,000,000 from May 2, 2019 to the Defendant.

D. From April 1, 2020, the Defendant opened and operated the coffee specialty store (hereinafter “the new coffee specialty store of this case”) with the trade name “G” from Busan-gu, Busan-gu, and from the first floor (hereinafter “G”) around August 26, 2020, and comprehensively transferred the new coffee specialty business of this case to 116,00,000 won to Ha and other H. around August 26, 2020. [The grounds for recognition] there is no dispute, Gap’s 1 to 4,7,9,10,10,11,19, evidence Nos. 12-1, 2, and 12-1, 2, and 12-1, and the purport of the whole pleadings.

2. The parties’ assertion: the plaintiff

1) Although compensation for damages caused by the transfer of business by deception is limited to 50,000,000 won for the adequate value of the business of the coffee specialty, the Defendant transferred the instant coffee specialty business to the Plaintiff by deceiving the Plaintiff that there was no place in the redevelopment area and there was no competition enterprise, thereby making business profit high. Accordingly, the Defendant is liable to pay the Plaintiff the amount of 50,000,000 won, which is the difference between the business transfer amount paid by the Plaintiff as compensation for damages and the adequate business transfer amount, and damages for delay.

2) Compensation for damages caused by breach of a duty not to engage in competitive activities

The Defendant’s new coffee specialty business of this case after transferring the coffee specialty business of this case to the Plaintiff is in violation of the obligation not to engage in the competitive business of this case and the obligation not to engage in the competitive business of this case or the obligation not to engage in the competitive business of Article 41(1) of the Commercial Act. Therefore, the Defendant is obliged to pay to the Plaintiff a total of KRW 15,00,000,000, including the decrease in sales due to the breach of the obligation not to engage in the competitive business of this case, and damages for delay.

B. Defendant

1) As to the claim for damages related to the transfer of business, the instant first and second contracts are concluded between the Plaintiff and the Defendant based on the reasonable amount of assignment according to their respective judgment, and the Defendant did not belong to the Plaintiff, and thus, the Plaintiff’s claim for damages in this part is without merit.

2) The instant primary contract providing for the duty not to engage in competitive business regarding the claim for damages caused by the breach of the duty not to engage in competitive business was invalidated by agreement between the parties, and the instant secondary contract does not have any provision on the duty not to engage in competitive business. In addition, the instant secondary contract is merely an acquisition of the right to real estate or the right to operate the franchise store, not an agreement for business transfer under the Commercial Act.

Since the defendant does not bear the duty of prohibition of competitive business against the plaintiff, the plaintiff's claim for damages is without merit.

3. Determination

A. As to the claim for damages arising from the transfer of business

The Plaintiff asserts to the effect that the Plaintiff suffered damages equivalent to KRW 50,000,000 by concluding the second contract of this case, on the premise that the pertinent coffee specialty business is the adequate value of KRW 50,000,000, by deceiving the Defendant and mistakenly assessing the value of the instant coffee specialty business in KRW 100,000.

If the Defendant added the purport of the entire argument to the video of Gap evidence No. 6 and Gap evidence No. 5, the Defendant presented the sales statistics of the instant coffee specialty to the Plaintiff in 2018 at the time of substitution of the instant primary contract with the secondary contract, and ② it is found that the Plaintiff was defective in part of the chair, table, etc. inside the instant coffee specialty, and the toilet screen, etc. is worn out.

However, whether a certain act constitutes a deception that causes mistake to others, and whether there exists a causal relationship between such deception and property disposal act should be determined generally and objectively by taking into account the situation of transaction, the other party's knowledge, character, experience, occupation, etc. (see, e.g., Supreme Court Decision 2015Do20233, Jul. 14, 2016). The following circumstances revealed by the respective descriptions of evidence Nos. 1 and 7 and the entire purport of pleadings, namely, there is no evidence that the objective value of the business of the 1st coffee store is 50,00,000 won or that there is no false statistical data regarding the sales of the 1st coffee store offered by the Defendant (the Plaintiff's assertion is only the subjective evaluation value of E, the lessor's store), and that there is no evidence that the Plaintiff concluded the instant contract with the Defendant as a substitute for the 20th coffee store prior to the conclusion of the instant contract.

B. As to the claim for damages caused by violation of the duty of prohibition of competition

1) Whether the instant secondary contract constitutes a business transfer agreement

The business under Article 41(1) of the Commercial Act refers to a functional asset as an organic integration organized for a certain business purpose. The term "functional asset as an organic integration" refers to a functional asset which serves as the source of revenue by systematically combining tangible and intangible properties and factual relations with economic values, and as such, it refers to the source of revenue that serves as the source of revenue. Thus, the functional asset as the source of revenue organically combined shall be the object of transaction like one goods. Thus, whether a business transfer can be deemed to have been made shall be determined depending on whether the transferee continues to engage in the business activity such as the transferor after the transferee transferred the functional asset as the source of revenue systematically organized (see, e.g., Supreme Court Order 2009Ma1136, Sept. 14, 2009).

In light of the above legal principles, the following circumstances, i.e., Article 1 of the first phase of this case provides that "a business establishment shop which receives premium" is "a comprehensive business establishment agreement" under Paragraph 5 of the special agreement; ② the Plaintiff and the Defendant replaced the first phase of this case with the second phase of contract, and changed the form of the contract and the broker. However, there was no reason to change the substance of the contract in the process. ③ The second phase of this case does not include the Defendant, even though the second phase of contract did not explicitly state the approval procedure for the transfer of the business, the second phase of this case's first phase of contract, and the second phase of this case's first phase of contract, and the second phase of this case's first phase of contract, the second phase of this case's first phase of contract, and the second phase of this case's second phase of contract, and the second phase of this case's transfer of equipment and the second phase of this case's sales contract to the Plaintiff.

2) The defendant's existence and scope of liability for damages

A) Unless otherwise agreed, the transferor shall not engage in the same kind of business in the same Special Metropolitan City, Metropolitan City, Si, Gun, and neighboring Special Metropolitan City, Metropolitan Cities, Sis, and Guns for ten years (Article 41(1) of the Commercial Act). However, as an area prohibited from engaging in competitive business, the same area or neighboring areas shall not be determined based on the area where a transferor’s ordinary business activities were conducted, rather than on the basis of the area where physical facilities were transferred in the same area or neighboring areas. Determination of whether a transferor is an ordinary business activity ought to be made by comprehensively taking into account various circumstances, including the content, scale, method, and scope of the pertinent business (see, e.g., Supreme Court Decision 2014Da80440, Sept. 10, 2015)

(1) On April 1, 2020 after the Defendant transferred the business of the instant coffee specialty to the Plaintiff, the Plaintiff opened the new coffee specialty store of the instant case in Busan High-gu, such as the coffee specialty store, and ② on August 26, 202, the fact that the Defendant transferred the business of the new coffee specialty of the instant case to Nonparty H around five months after the opening date of the instant coffee specialty store and around August 26, 202 is as shown in the aforementioned facts. Furthermore, according to the purport of the argument as a whole, it is acknowledged that the new coffee specialty of the instant case is located at approximately 200 meters away from the coffee specialty of the instant case.

According to the above facts, the defendant was engaged in the same kind of business in violation of the duty of prohibition of competitive business as provided by Article 41 (1) of the Commercial Act by opening and operating the new coffee specialty store of this case. Thus, the defendant is liable to compensate the plaintiff for damages caused by such violation.

B) Scope of damages liability

(1) A decrease in sales

The plaintiff asserts that the violation of the defendant's duty to prohibit competitive business caused a decrease in sales of KRW 5,00,000 to the plaintiff for about five months from April 1, 2020 to August 26, 2020.

According to the evidence evidence Nos. 6 and 20, the sales in April to August 2020, 2020 of the coffee specialty point of this case is recognized as follows.

A person shall be appointed.

However, the following circumstances revealed by the aforementioned facts and Gap evidence No. 15 and the purport of the entire argument, namely, ① the sales amount of the coffee specialty in the case before the plaintiff takes over the business, appears to have been reduced compared to the previous years, and in the case of 2020, it is difficult to reverse the adverse effects on the business by Coviral viritis-19, and ② there is no data showing the operating profit ratio out of the sales amount of the coffee specialty in the case of the case, or there is no data clearly distinguishing the portion arising from the opening of the new coffee specialty in the case of the decrease in the sales amount of the coffee specialty in the case of the case. ③ Whether other new coffee specialty specialty in the case of the case of the case, other than the new coffee specialty specialty in the case of the case of the case, and whether the redevelopment project expected by the plaintiff, etc., might have an impact on the sales amount of the coffee specialty specialty specialty in the case of the case of the case of the case of the case of the case of the case, there is no evidence that there was no other reason to acknowledge the newly reduce the aforementioned new coffee specialty.

(2) Consolation money

The following circumstances, which can be seen by the facts as seen earlier, Gap evidence Nos. 15 and 16, and Eul evidence Nos. 1 and the purport of the entire pleadings, i.e., the principal customers of the coffee specialty of this case (50%) or corporation Won (25%). Since the coffee specialty of this case and the new coffee specialty specialty of this case are about 200 meters away from consumers’ point of view, they can be seen as belonging to the same business district. ② The coffee specialty of this case, in principle, sells me Newcom as recommended by I head office in accordance with the franchise franchise franchise agreement, cannot be seen as responding to the decrease in sales through price adjustment, ③ the Plaintiff filed the lawsuit of this case around May 11, 2020, and sought closure of the business of this case, and the Plaintiff did not pay consolation money to non-party No. 20, the Plaintiff’s violation of its duty to pay consolation money to non-party No. 1, 2000.

Therefore, the defendant is obligated to pay to the plaintiff 10 million won and damages for delay calculated at each rate of 6% per annum under the Commercial Act from October 13, 2020 to December 23, 2020, which is the date of the decision that it is reasonable for the defendant to dispute as to the existence or scope of the above obligation, as requested by the plaintiff, from October 13, 2020 to the day following the day of service of a copy of the application for modification of the purport of the claim of this case and the cause of the claim of this case, and 12% per annum under the Act on Special Cases concerning the Promotion, etc. of Legal Proceedings from the next day to the day of full payment.

4. Conclusion

Therefore, the plaintiff's claim is justified within the scope of the above recognition, and the remainder is dismissed as it is without merit. It is so decided as per Disposition.

Judges

The presiding judge, new judge

Judges Kim Jong-hee

Judge Bedululul

Note tin

1) The Plaintiff stated the date following the delivery date of a copy of the complaint in this case, “the initial date for delay damages” in the application for modification of the purport and cause of the claim in this case.

However, the damages claimed by the plaintiff in the complaint of this case are limited to KRW 2,00,000, and the delivery date of a copy of the complaint of this case shall be June 1, 2020.

In light of the fact that the defendant's violation of the duty of prohibition of competitive business asserted by the plaintiff was terminated, the purport of the claim and the cause of the claim in this case

It shall be deemed to claim the payment of damages for delay calculated from the day after the copy of the application for change is served.

(ii)Paragraph 4 of Article 31 of the franchise agreement (A No. 15)